CAAFlog » Court-Martial News

On May 8, CAAF denied review in Easterly, and denied the Hutchins writ petition without prejudice.

Easterly involves a decision of the NMCCA finding harmless error in the military judge’s denial of a defense motion for relief from unlawful command influence based on the Heritage Brief (a presentation given numerous times by the Commandant of the Marine Corps). I discussed Easterly in this post, and Phil discussed the case in this post.

Curiously, CAAF’s daily journal entry states (without explanation) that Judge Ryan did not participate in Easterly.

In the long-running Hutchins (CAAFlog news page; CAAFlog case page), Sergeant Hutchins has raised multiple UCI-based objections to the personnel of the court-martial, and then sought a writ of mandamus directly from CAAF. Denying the request, CAAF ruled:

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  On consideration of the petition for extraordinary relief in the nature of a writ of mandamus and prohibition, it is ordered that said petition is hereby denied without prejudice.

A case that could become a capital court-martial is developing in the Air Force. This report from the Air Force Times begins:

Senior Airman Charles Amos Wilson III, a support team member with the 461st Aircraft Maintenance Squadron at Robins Air Force Base, Georgia, was already in trouble with local authorities when he was arrested in August, charged with killing his fiancee and her unborn child.

He had been arrested in October 2011 after a fire in his rental home killed Demetrius Hardy, a civilian employee at Robins. Authorities believe Wilson and Hardy, along with Infini Hardy, conspired to set fire to Wilson’s trailer to collect insurance money.

Less than a year later, Wilson was arrested by authorities after a female Air Force technical sergeant said he drove toward her in a pickup truck in a threatening manner, dragged her by the hair, fired a gun from the window of his home at her and told her, “I’m going to make you die today.”

In the second case, the Air Force requested, and was denied, jurisdiction to handle prosecution after Wilson was arrested in July 2012. Georgia authorities placed Wilson in a pretrial diversion program,until he was arrested Aug. 31 as a suspect in the shooting death of 30-year-old Tameda Ferguson, who was 8 ½ months pregnant.

Now the Air Force is handling charges in all three cases.

More details can be found in this local media report that was picked up by Stars and Stripes. The report discusses a recent Article 32 hearing that included discussion of the possibility of a capital referral:

Muldoon is tasked with making a recommendation on whether Wilson should face a court-martial, the charges that he should be tried on at the court-martial and whether the death penalty should be sought. Military defense attorney Maj. Willie Babor alleged Wilson will have “inadequate representation” if the death penalty is sought at court martial. Prosecutors have filed aggravated circumstances calling for the death penalty, including the allegation that Wilson is responsible for three deaths.

On the Military Justice Legislation front, this Associated Press report discusses a recent HASC vote:

In an emotionally charged debate, the House Armed Services Committee rejected a measure that would have stripped the long-standing authority to decide whether to pursue a case, especially those related to sexual assault, and hand the job to seasoned military lawyers. The vote was 34-28.

And Politico has this report about the political environment.

The Huffington Post reports here that “a military lawyer representing the mastermind of the Sept. 11 terrorist attacks is resigning from the U.S. Army, which was trying to force him off Khalid Sheikh Mohammed’s defense team on the grounds that he needed to attend a graduate course this year.”

Finally, we’ve posted just a couple of links to reports about the Barbera case (see here and here). Sergeant First Class Michael Barbera is accused of premeditated murder in the shooting deaths of two Iraqi boys in 2007. This Reuters report, this Associated Press report, and this LA Times report all discuss the allegations and last month’s Article 32 investigation proceedings. But this report from Stars and Stripes discusses the fact that the killings initially went unreported. It includes discussion of the Report of the Subcommittee on Military Justice in Combat Zones by the Defense Legal Policy Board: Military Justice in cases of U.S. Service members alleged to have caused the death, injury or abuse of non-combatants in Iraq or Afghanistan:

Though the report did not pass judgment on particular cases, the subcommittee reviewed instances of alleged misconduct that caused civilian casualties.

“Evidence exists that service members at the point of contact, or their leaders, have been reluctant to inform the command of reportable incidents,” the subcommittee found. “This reluctance may be attributed to any number of potential factors, including a feeling of justification in connection with the actions taken, fear of career repercussions, loyalty to fellow servicemembers or the unit, or ignorance.”

The report recommends changes in the military justice system’s handling of reporting and adjudicating civilian killings, injuries and abuses.

In this post, the No Man discussed that report when it was commissioned in 2012, and in this post he provided this link to the report itself.

The story that Phil reported on last week has hit the headlines. Multiple media sources are reporting on the search of defense counsel offices at Camp Pendleton. From the Washington Post:

Investigators raided the offices May 2 in search of a cellphone tied to a case being tried at the base, north of San Diego, Lt. Col. Clay Plummer told The Associated Press.

“This is just unacceptable,” said Plummer, the Marine Corps’ regional defense counsel for the West. “Just think of the U.S. federal Marshals or FBI raiding a public defender’s office, that’s what this is the equivalent to. It’s crazy.”

Marine Corps officials called it a “rare event” and said a neutral, independent judge advocate has been appointed to review the seized evidence to identify whether any potential privileged material was improperly disclosed. Also to be reviewed is how the search was conducted.

Officials said they could not comment further because of pending litigation and the independent review.

Defense lawyers were contacting hundreds of clients to inform them that military law enforcement officials had opened case files, Plummer said.

The search’s authorization was granted by the area commander. Two armed, uniformed officers and members of the criminal investigative division came into the building and did not allow anyone to leave while they searched for the cellphone, Plummer said. They searched every attorney’s office — including those with no relation to the case — and continued to search even after locating the cellphone, he said.

This should get interesting.

USA Today is running this report from the Marine Corps Times about continued pressure on the Commandant of the Marine Corps from Congressman Walter Jones over fallout from our #6 military justice story of 2013.

Stars and Stripes has this report about the LTC Morse cease-and-desist order. Phil broke that story in this post.

And also from Stars and Stripes is this report that:

Secretary of Defense Chuck Hagel announced a department-wide review of the services’ alcohol policies during a news conference with reporters Thursday, the same day that the Pentagon released its latest report on sexual assault within the ranks. The Defense Department revealed there were more than 5,000 reports of sexual assault by servicemembers in fiscal 2013, a 50 percent increase over the previous year.

Officials have said that the actual number of sexual assaults is much higher because many troops are reluctant to report such attacks.

More than two-thirds of the sexual assault reports involved alcohol use by either the victim, the assailant or both, according to the Pentagon.

“[The alcohol policies] will be revised, where necessary, to address risks that alcohol poses to others, including the risk that alcohol is used as a weapon against victims in a predatory way,” Hagel said.

The Daily Beast has this report about the wife of a Marine who alleges that her husband was abusive, and that military authorities were slow to act:

Herron’s ex-husband, of course, has not been proven guilty of any crime. At the moment, Herron’s accusations are still just that. But the very fact that over a year after her investigation began Herron’s allegations have still not been resolved through the military justice system points to how slowly the wheels of justice turn under current policies. It also shows how excruciating it can be for those involved to navigate through the process. Accuser and accused alike can be placed in a limbo without a clear sense of the next step in the process or what resources, if any, they can count on for support and resolution.

An in a similar vein, the NPR program Here and Now reports here about:

A preliminary military hearing at Joint Base Lewis-McChord in Washington state continues today to determine whether then-Staff Sergeant Michael Barbera should face a court-martial in the slaying of two unarmed Iraqi brothers. The brothers were herding cattle near where Barbera’s Army reconnaissance team was hiding. Fellow troops say the boys were only 10 or 11 and posed no threat, but that Barbera shot and killed them anyway. The shootings were in 2007.

In 2009, some of Barbera’s fellow soldiers came forward. And Army criminal investigators looked into the case but just issued Barbera a letter of reprimand. It wasn’t until an investigation by Pittsburgh’s Tribune-Review in 2012 that the Army filed charges against Barbera, who could face life in prison if he’s convicted of premeditated murder.

Finally, on the sexual assault front, this report from U.S. News and World Report discusses proposals to give military sexual assault victims amnesty for collateral offenses, this report from The New York Times discusses the recently released Department of Defense Fiscal Year 2013 Annual Report on Sexual Assault in the Military (report available here), and this report from The Christian Science Monitor notes that “by the Pentagon’s data, men account for half of all reported victims of sexual assault in the military.”

Here are links to two news stories by McClatchy reporter Michael Doyle about United States v. MacDonald, No. 14-0001/AR (CAAFlog case page):

CAAF is reviewing two issues in MacDonald:

I. Whether the Army Court of Criminal Appeals erred in determining that the military judge’s error in quashing a subpoena issued to Pfizer, Inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline was harmless beyond a reasonable doubt.

II. Whether the military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.

My argument preview will post tomorrow morning.

Case Links:
• ACCA opinion
• Blog post: CAAF to explore the bounds of possible drug-induced psychosis
• Appellant’s Brief
• Appellee’s (Government) Brief
• Blog post: Media coverage of United States v. MacDonald, No. 14-0001/AR

I just noticed an update to CAAF’s daily journal (available here), showing that the court granted review of two issues in the Air Force case of United States v. McFadden, No. 37438 (A.F.Ct.Crim.App. Sep. 26, 2013) (discussed here) (link to unpub. op.):

I. WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY FAILING TO EXCUSE FOR CAUSE A COURT MEMBER WHO ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING DEFENSE COUNSEL’S REQUEST FOR A MISTRIAL AFTER A COURT MEMBER ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

McFadden is one of the uncertified cases I discuss in my post about apparent bias in Air Force TJAG certifications. I’ve updated the post to reflect the grant.

In other docket news, Marine Sergeant Hutchins (full coverage here) has asked CAAF for a writ of mandamus.

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus and prohibtion was filed under Rule 27(a) on this date.

Notably, this isn’t docketed as a writ-appeal of a decision of the NMCCA, but is a direct appeal to CAAF. As discussed in this post, Sergeant Hutchins has objected to anyone who is subordinate to the Secretary of the Navy serving as military judge in his case.

Controversy is roiling around a former Marine who protested his treatment at the hands of the Corps by donning his uniform and literally climbing onto a cross.

Sgt. Joshua Klohr, who feels he was railroaded into a court-martial and a discharge from the military, hung himself from a replica cross at the Colorado state Capitol on Easter Sunday, the Military Times reported.

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Fox32 Denvery reports.

In other news.

Army leaders suspended an Afghanistan-bound Fort Carson commander over allegations of insensitivity toward sexual assault victims and gender discrimination before an investigation cleared him last month.

The investigation into the conduct of Col. Brian Pearl is detailed in a 361-page report released to The Gazette on Monday under the federal Freedom of Information Act.

The report shows that three female officers in Pearl’s 4th Brigade Combat Team came forward with the accusations after a Feb. 18 focus group on sexual assault policies with a women-only audience.

So reports Military.com.  The report goes on to say:

Pearl told investigators the statistics drove him to bring the brigade’s women together for a discussion of sexual assault. “I wanted our female soldiers to be comfortable discussing these topics in an all-female environment,” Pearl wrote in a statement to investigators. But what was supposed to be a meeting to drive sexual assault prevention and encourage reporting of attacks left some women in attendance with a different message. “The brigade commander made some comments that left her feeling like the message toward females was ‘Don’t get raped and if you do don’t report it’,” a sergeant wrote in a memorandum to investigators. The training, which focuses on bystanders intervening to stop attacks and includes steps soldiers can take to avoid victimization, is not without controversy. Investigators asked witnesses whether Pearl made comments disparaging victims of sexual assault, negative statements regarding victims and whether anything he said blamed victims for being attacked. “An overwhelming majority of witnesses (29 of 32) said Col. Pearl did not make disparaging or negative remarks about victims of sexual assault with the remaining three witnesses being the original complainant and two supplementary witnesses with the complainant,” the investigator found. Meetings like the one held by Pearl have been happening across the Army over the past year. The military has faced numerous allegations that sexual assault complaints have been mishandled or ignored, and sexual assault is a growing problem for commanders.

This is why conversations and discussions about sexual assault are so hard. On Tueday, the Military Times reported on Manning.

A judge granted on Wednesday Pfc. Manning’s petition for a name change.

Navy Times

In the old cases category, according to this Marine Corps Times report, Marine judge advocate Lieutenant Colonel Jasper, formerly the western regional trial counsel at Camp Pendleton, CA:

was cleared of misconduct at a Board of Inquiry following accusations that he slapped the rear end of a civilian female subordinate at a social event following legal training in Newport, R.I., last year. The panel also found no basis for allegations of substandard performance, which stemmed from accusations that Jasper treated certain junior officers in a demeaning way.

The report doesn’t say exactly, but I’ve heard that the board found no basis for separation. However, the report does include these noble words from LtCol Jasper’s defense counsel:

“Lt. Col. Jasper and his family, this has been a big stress on them. As much as they’re very, very happy that the process ended up working the way it did, it was difficult to go through that process,” Shelburne said. Despite that stress, Shelburne said, Jasper wanted to emphasize a desire that his case not create a rift within his field.

“No one wants this to reflect poorly on the judge advocate community or the Marine Corps for that matter,” he said.

Also in the old cases category, according to this report from the Anchorage Daily News, Petty Officer 3rd Class William Bisel was acquitted of all charges last week. Readers will remember the Bisel case from posts such as “The Coast Guard CCA declines to create its own jurisdiction (and then the Government appeals),” and “CAAF declines to create jurisdiction for the Coast Guard CCA.”

But in the new cases category, a commentor previously noted this local media story about allegations against Air Force Army Major Erik Burris (the Chief of Justice for the 82nd Airborne Division) that were made by his estranged wife. This case joins the allegations against another judge advocate: Army Lt. Col. Joseph Morse (who trains military prosecutors who handle sexual and physical abuse cases), whose case is discussed in this Washington Times report.

In other news, the Washington Post has this story on the SVC program, with an emphasis on the Sinclair case.

And finally, the Washington Times has a story titled: Political hunt for sex abusers puts military justice in peril, lawyers say. It begins:

The push from the commander in chief, generals and politicians to punish sexual offenders has become so relentless that it endangers the fairness of the military justice system, defense lawyers say.

They worry that a cacophony of public statements vouching for accusers and demanding justice can sway military judges and jurors who are trained to take lawful orders.

In the wake of the debacle of the Sinclair court-martial, where the defense team used political concerns as a basis to successfully argue that the prosecution of the General was unfair, comes news that a half-century ago President Nixon may have used his office to sabotage a different high-profile court-martial prosecution. From this CBS News report:

The documents, mostly hand-written notes from Nixon’s meetings with his chief of staff H.R. “Bob” Haldeman, lead some historians to conclude that President Richard Nixon was behind the attempt to sabotage the My Lai trials and cover up what was becoming a public-relations disaster for his administration.

There’s an interesting murder trial wrapping up at Fort Stewart in Georgia. From this local media report:

Closing arguments are set to begin at 8 A.M. [Thursday] in a Fort Stewart Court-Martial. Private Isaac Aguigui is charged with murder in the death of his wife, Sgt. Deirdre Aguigui and their unborn child back in July of 2011. Officials say his plan was to fund his anti-government militia group with the insurance money from her death. This is a court-martial by a judge, not a jury panel, so we’re not sure how quickly a verdict could come.

The Coast Guard Academy will conduct an Article 32 investigation in a sexual assault case involving two cadets. There are few details of the case beyond those in this local media report.

And in further Coast Guard news, this local media report discusses the resumption of trial proceedings in United States v. Bisel:

“The court-martial was originally scheduled to begin on July 30, 2013 but was postponed due to procedural issues,” officials wrote. “Petty Officer Bisel is charged with two violations of Article 120 of the Uniform Code of Military Justice, which involve sexual assault.”

I think calling the delay in this case the product of procedural issues is taking liberties with the facts. As I discussed in this post back in February, the issue in Bisel was that the trial counsel tried, but failed, to allege the offense of forcible rape, instead charging only the lesser offense of aggravated sexual contact. Rather than prefer an additional charge, the Government appealed the military judge’s ruling. The Coast Guard Court of Criminal Appeals found that it lacked jurisdiction to consider the appeal because the military judge didn’t actually dismiss anything (the requirement for such an appeal). So, the Government asked the court to order the judge to dismiss the charge, thereby creating jurisdiction for its appeal.

The Coast Guard Court, and then CAAF, declined.

Brigadier General Sinclair was sentenced to forfeit $5,000 pay per month for four months and to be reprimanded.

For a verbatim transcript of the proceedings to be required by Article 54 and Rule for Courts-Martial 1103(b)(2)(B), the sentence would have had to include confinement in excess of six months, forfeiture of pay greater than two-thirds pay per month, or other punishments in excess of what may be adjudged by a special court-martial (i.e., a dismissal or a very large fine). Any O-7 makes considerably more than $7,500 in pay per month, and a special court-martial can adjudge a reprimand.

Unless there’s an obscure Army regulation I don’t know about, there is no requirement for the Army to prepare a verbatim (and releasable under FOIA) transcript of any of the proceedings of the Sinclair court-martial.

Via Reuters, and the Associated Press, and the Washington Post, and the New York Times, Midshipman Joshua Tate of the Naval Academy was acquitted of sexual assault today, after a bench trial before a military judge.

However (and I’ve never seen this before), various sources confirm the AP’s report that:

In addition to the sexual assault charge, Tate also faced charges of lying to investigators. The judge did not decide those Thursday, however, returning the decision on what to do to the head of the Naval Academy.

From the New York Times:

A military judge on Thursday morning reprimanded Army Brig. Gen. Jeffrey A. Sinclair for mistreating his mistress and other charges, but did not sentence him to any jail time and allowed him to remain in the military.

He was also ordered to forfeit $5,000 a month in pay for four months, but will be allowed to keep his pension and other benefits.

The decision by the judge at Fort Bragg, Col. James L. Pohl, was a sweeping victory for the defense, which had earlier agreed with prosecutors to cap any prison time he might face at 18 months.

The New York Times reports:

The Army general prosecuted in the military’s most closely watched sexual assault case has agreed to plead guilty to lesser charges in exchange for the dismissal of accusations that he twice forced his longtime mistress into oral sex, threatened to kill her and her family, and performed consensual but “open and notorious sexual acts” with her in a parked car in Germany and on a hotel balcony in Tucson.

h/t D_P.

Today’s New York Times has this article about the Sinclair case on the front page. Here’s a teaser:

During a Jan. 7 pretrial hearing, the sole witness to accuse Brig. Gen. Jeffrey A. Sinclair of forced sex — charges that could imprison him for life — took the stand at Fort Bragg to explain how she had only recently found an old iPhone that contained evidence of their three-year affair.

What might have seemed an innocuous discovery was, to General Sinclair’s civilian lawyers, a major opportunity: The witness, a 34-year-old captain, had kept text and other communications with General Sinclair on her computer and on another cellphone, some of which bolstered their contention that the relationship was consensual. They suspected this newly discovered phone contained similar messages.

As the lead defense lawyer, Richard L. Scheff, a former federal prosecutor, questioned the captain, she told a precise, detailed and unequivocal story about when and where she found the phone, and what she did with it.

But according to a forensic expert hired by the defense, her story was not true — the phone had been charged and restarted two weeks earlier than she had claimed. The military’s own experts reached a similar conclusion later.

After the hearing, Mr. Scheff said, he drew close to the chief military prosecutor, Lt. Col. William Helixon, and said, “You realize that you have a problem, right?” Colonel Helixon, Mr. Scheff said, agreed.

Thanks to reader “E” for the tip.

According to this Reuters report, the Sinclair trial is delayed “indefinitely,” and the members are returning to their normal duties. The Associated Press adds that:

Attorneys for an Army general charged with sexual assault said Tuesday that they have decided to try to renegotiate a plea bargain with a new set of military officials after the judge determined that the case may have been improperly influenced by political concerns.

Judge Col. James Pohl sent the jury of generals back to their duty stations around the world after attorneys for Brig. Gen Jeffrey A. Sinclair announced their decision. The two sides will enter negotiations to try to resolve the case. A new general and legal advisers would have to be brought in to approve any new deal.

Additional coverage in this local media story and this LA Times story. But if you haven’t been following along over the past few days, you’re probably going to want to at least skim our recent coverage at this link.

The Senate passed Senator McCaskill’s “Victims Protection Act” (S. 1917) (link to Thomas) by a vote of 97-0. Coverage of the bill is available in our Military Justice Legislation category. The Hill reports here that the bill may not get consideration in the House outside of the normal NDAA process.

And finally, from this Air Force Times Report:

An airman whose sexual assault case was dismissed last September by former Third Air Force commander Lt. Gen. Craig Franklin will now face court-martial on rape charges.